seamus dubhghaill

Promoting Irish Culture and History from Little Rock, Arkansas, USA

Tag Archives: Twenty-eighth Amendment of the Constitution of Ireland


by Leave a comment

28th Amendment of the Constitution Bill 2008 Rejected by Irish Voters

The Twenty-eighth Amendment of the Constitution Bill 2008, a proposed amendment to the Constitution of Ireland, is rejected by voters on June 12, 2008, by a margin of 53.4% to 46.6%, with a turnout of 53.1%. The purpose of the proposed amendment is to allow the state to ratify the Treaty of Lisbon of the European Union.

The treaty had been intended to enter into force on January 1, 2009, but has to be delayed following the Irish rejection. However, the Lisbon treaty is approved by Irish voters when the Twenty-eighth Amendment of the Constitution of Ireland is approved in the second Lisbon referendum, held in October 2009.

The Treaty of Lisbon is signed by the member states of the European Union on December 13, 2007. It is in large part a revision of the text of the Treaty establishing a Constitution for Europe (TCE) after its rejection in referendums in France in May 2005 and in the Netherlands in June 2005. The Treaty of Lisbon preserves most of the content of the Constitution, especially the new rules on the functioning of the European Institutions but gives up any symbolic or terminologic reference to a constitution.

Because of the decision of the Supreme Court of Ireland in Crotty v. An Taoiseach (1987), an amendment to the Constitution is required before it can be ratified by Ireland. Ireland is the only one of the then fifteen EU member states to put the Treaty to the people in a referendum. Ratification of the Treaty in all other member states is decided upon by national parliaments alone.

On February 26, 2008, the Government of Ireland approves the text of the changes to the constitution. The Twenty-eighth Amendment of the Constitution Bill is proposed in Dáil Éireann by Minister for Foreign Affairs Dermot Ahern on April 2, 2008. It passes final stages in the Dáil on April 29, with Sinn Féin TDs and Independent TD Tony Gregory rising against, but with insufficient numbers to call a vote. It passes final stages in the Seanad on May 7.

A Referendum Commission is established by Minister for the Environment, Heritage and Local Government John Gormley. It is chaired by former High Court judge Iarfhlaith O’Neill. Its role is to prepare one or more statements containing a general explanation of the subject matter of the proposal and of the text of the proposal in the amendment bill.

The government parties of Fianna Fáil and the Progressive Democrats are in favour of the treaty, but the other government party, the Green Party, is divided on the issue. At a special convention on January 19, 2008, the leadership of the Green Party fails to secure a two-thirds majority required to make support for the referendum official party policy. As a result, the Green Party itself does not participate in the referendum debate, although individual members are free to be involved in whatever side they chose. All Green Party members of the Oireachtas support the Treaty. The main opposition parties of Fine Gael and the Labour Party are also in favour. Only one party represented in the Oireachtas, Sinn Féin, is opposed to the treaty, while minor parties opposed to it include the Socialist Party, the Workers’ Party and the Socialist Workers Party. Independent TD’s Tony Gregory and Finian McGrath, Independent MEP Kathy Sinnott, and Independent members of the Seanad from the universities David Norris, Shane Ross and Rónán Mullen advocate a “No” vote as well.

The Government sends bilingual booklets written in English and Irish, explaining the Treaty, to all 2.5 million Irish households. However, compendiums of the two previous treaties, of which the Lisbon Treaty is intended to be a series of reforms and amendments, remain unavailable in Ireland. Some commentators argue that the treaty remains essentially incomprehensible in the absence of such a compendium.

On March 12, 2008, the Libertas Institute, a lobby group started by businessman Declan Ganley, launches a campaign called Facts, not politics which advocates a “No” vote in the referendum. A month later, the German Chancellor, Angela Merkel, appeals to Irish people to vote “Yes” in the referendum while on a visit to Ireland. The anti-Lisbon Treaty campaign group accuses the government and Fine Gael of a U-turn on their previous policy of discouraging foreign leaders from visiting Ireland during the referendum campaign. The European Commissioner for Internal Market Charlie McCreevy admits he had not read the Treaty from cover to cover and says, “he would not expect any sane person to do so.”

At the start of May, the Irish Alliance for Europe launches its campaign for a “Yes” vote in the referendum this consists of trade unionists, business people, academics and politicians. Its members include Garret FitzGerald, Ruairi Quinn, Pat Cox and Michael O’Kennedy. The Taoiseach Brian Cowen states that should any member of the Fianna Fáil parliamentary party campaign against the treaty, they will likely be expelled from the party.

On May 21, 2008, the executive council of the Irish Congress of Trade Unions votes to support a “Yes” vote in the referendum. Rank and file members of the individual unions are not balloted, and the Technical, Engineering and Electrical Union (TEEU) advises its 45,000 members to vote “No.” The Irish bishops conference states the Catholic Church‘s declaration that the treaty will not weaken Ireland’s constitutional ban on abortion, however the conference does not advocate either a “Yes” or “No” vote. By the start of June, Fianna Fáil, Fine Gael and the Labour Party have united in their push for a “Yes” vote despite earlier divisions. The two largest farming organisations, the Irish Creamery Milk Suppliers Association (ICMSA) and the Irish Farmers’ Association call for a “Yes” vote, the latter giving its support after assurances from Taoiseach Brian Cowen that Ireland will use its veto in Europe if a deal on World Trade reform is unacceptable.

There were 3,051,278 voters on the electoral register. The vast majority of voting takes place on Thursday, June 12, between 7:00 a.m. and 10:00 p.m. Counting begins at 9:00 a.m. the following morning. Several groups vote before the standard polling day, with some casting postal votes before June 9. These include members of the Irish Defence Forces serving in United Nations peacekeeping missions, Irish diplomats and their spouses abroad, members of the Garda Síochána, those unable to vote in person due to physical illness or disability, those who are unable to vote in person due to their employment (including students) and prisoners.

On June 9, several islands off the coast of County Donegal vote: Tory Island, Inishfree, Gola, Inishbofin and Arranmore. These islands are all part of the Donegal South-West constituency. Around 37% of the 745 eligible votes. Two days later, several islands off the coast of counties Galway and Mayo vote: the Aran Islands (Inis Mór, Inis Meáin and Inis Oírr) and Inishboffin form part of Galway West constituency, while Inishturk, Inishbiggle and Clare Island form part of the Mayo constituency. The Galway islands have 1,169 eligible voters, while the Mayo islands have 197.

Votes are counted separately in each Dáil constituency. The overall verdict is formally announced by the Referendum Returning officer in Dublin Castle by accumulating the constituency totals.

(Pictured: Campaign posters in St. Stephen’s Green, Dublin)


by Leave a comment

Birth of Frank Clarke, Former Chief Justice of Ireland

George Bernard Francis Clarke, Irish barrister who is Chief Justice of Ireland from July 2017 to October 2021, is born on October 10, 1951, in Walkinstown, Dublin. He has a successful career as a barrister for many years, with a broad practice in commercial law and public law. He is the chair of the Bar Council of Ireland between 1993 and 1995. He is appointed to the High Court in 2004 and becomes a judge of the Supreme Court of Ireland in February 2012. Following his retirement from the bench, he returns to work as a barrister. Across his career as a barrister and a judge, he is involved in many seminal cases in Irish legal history.

Clarke is the son of a customs officer who dies when he is aged eleven. His mother is a secretary. He is educated at Drimnagh Castle Secondary School, a Christian Brothers secondary school in Dublin. He wins the Dublin Junior High Jump Championship in 1969. He studies Economics and Maths at undergraduate level at University College Dublin (UCD), while concurrently studying to become a barrister at King’s Inns. He is the first of his family to attend third level education and is able to attend university by receiving grants. While attending UCD, he loses an election to Adrian Hardiman to become auditor of the Literary and Historical Society (L&H).

Clarke joins Fine Gael after leaving school. He is a speechwriter for Taoiseach Garret FitzGerald and election agent for George Birmingham. He then subsequently, himself, runs for election to Seanad Éireann. He campaigns against the Eighth Amendment of the Constitution of Ireland in 1983 and in favour of the unsuccessful Tenth Amendment of the Constitution Bill 1986. He chairs a meeting of family lawyers in 1995 supporting the successful second referendum on divorce.

Clarke is called to the Bar in 1973 and to the Inner Bar in 1985. He has a practice in commercial, constitutional and family law. Two years after commencing practice he appears as junior counsel for the applicant in State (Healy) v Donoghue before the Supreme Court, which establishes a constitutional right to legal aid in criminal cases.

Clarke represents Michael McGimpsey and his brother Christopher in a challenge against the constitutionality of the Anglo-Irish Agreement, which is ultimately unsuccessful in the Supreme Court in 1988.

Clarke appears for the plaintiff with Michael McDowell and Gerard Hogan in Cox v Ireland in 1990, where the Supreme Court first introduces proportionality into Irish constitutional law and discovers the right to earn a livelihood. He represents Seán Ardagh and the Oireachtas Subcommittee formed after the death of John Carthy in a constitutional case which limits the powers of investigation of the Oireachtas, which leads to the unsuccessful Thirtieth Amendment of the Constitution. In an action taken by tobacco companies to challenge the legality of bans on tobacco advertising, he appears for the State.

Clarke is twice appointed by the Supreme Court for the purpose of Article 26 references. He argues on behalf of the Law Society of Ireland in a referral regarding the Adoption (No. 2) Bill 1987. He is appointed by the Supreme Court to appear to argue on behalf of the rights of the mother in In re Article 26 and the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill 1995. In 1994, President Mary Robinson requests him to provide her with legal advice on the presidential prerogative to refuse to dissolve Dáil Éireann.

Clarke is external counsel to the Commission to Inquire into Child Abuse and represents the Flood Tribunal in its case against Liam Lawlor and the State in Charles Haughey‘s challenge to the legality of the Moriarty Tribunal. He and George Birmingham also appear for Fine Gael at the Flood Tribunal, and he represents the public interest at the Moriarty Tribunal. He is a legal advisor to an inquiry into the deposit interest retention tax (DIRT) conducted by the Public Accounts Committee, along with future judicial colleagues Paul Gilligan and Mary Irvine.

Clarke is Chairman of the Bar Council of Ireland from 1993 to 1995. Between 1999 and 2004, he acts as chair of Council of King’s Inns. He is a professor at the Kings’s Inns between 1978 and 1985 and is appointed an adjunct professor at University College Cork (UCC) in 2014. He also serves as an adjunct professor at Trinity College Dublin (TCD).

Clarke acts as a chair of the Employment Appeals Tribunal while still in practice. He is also a steward of the Turf Club and the chairman of Leopardstown Racecourse. He was due to take over as senior steward of the Turf Club but does not do so due to his appointment to the High Court.

Clarke is appointed as a High Court judge in 2004. He is chairman of the Referendum Commission for the second Lisbon Treaty referendum in 2009. As a High Court judge he gives a ruling on the Leas Cross nursing home case against RTÉ, that the public interest justifies the broadcasting of material that otherwise would have been protected by the right to privacy. He frequently presides over the Commercial Court during his time at the High Court. He is involved in the establishment of two High Court lists in Cork, Chancery and a Non-Jury List.

Clarke is appointed to the Supreme Court on February 9, 2012, and serves as Chief Justice from October 2017 until his retirement on October 10, 2021, required by law on his 70th birthday. In March 2021, the Cabinet begins the process of identifying his successor. Donal O’Donnell is selected to replace him. His final day in court is October 8, 2021, where judges, lawyers and civil servants make a large number of tributes to him. Mary Carolan of The Irish Times says that under his leadership the Supreme Court is “perhaps the most collegial it had been in some time.”

Following his retirement from the judiciary, Clarke resumes his practice as a barrister and rejoins the Bar of Ireland. Under the rules of the Bar of Ireland, he cannot appear before a court of equal or lesser jurisdiction to that on which he sat as a judge. Given that he was the most senior judge in Ireland, he cannot appear in any court in Ireland. He can appear in the European Union (EU) courts. However, he indicates his intention to focus on mediation and arbitration work.

In June 2022, Clarke is sworn in as judge of the court of appeal of the Dubai International Financial Centre (DIFC) courts but resigns a few days later following criticism from barrister and Labour Party leader, Ivana Bacik.

Clarke has been married to Dr. Jacqueline Hayden since 1977. They have a son and a daughter. He is interested in rugby and horse racing, at one point owning several horses.